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This is a Bill, not an Act. For current law, see the Acts databases.
2004
The Parliament of
the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
National
Water Commission Bill 2004
No. ,
2004
(Prime
Minister)
A Bill for an Act to establish
the National Water Commission, and for related purposes
Contents
A Bill for an Act to establish the National Water
Commission, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the National Water Commission Act
2004.
This Act commences on the day on which it receives the Royal
Assent.
The object of this Act is to establish the National Water Commission, as
an independent statutory body, as required by the National Water
Initiative.
In this Act, unless the contrary intention appears:
Australian Water Fund means the Australian Water Fund
announced by the Minister on 13 September 2004.
Australian Water Fund Account means the Australian Water Fund
Account established by section 40.
CEO or Chief Executive Officer means the Chief
Executive Officer appointed in accordance with section 25.
Chair means the Chair of the NWC.
COAG means the Council of Australian Governments.
COAG Water Reform Framework means the agreement, executed by
COAG in 1994 to reform the management and regulation of Australia’s water
resources, as incorporated into the Agreement to Implement National Competition
Policy and Related Reforms, and as amended from time to time.
Commissioner means a Commissioner of the NWC appointed in
accordance with section 11 and includes the Chair.
full-time CEO means a CEO appointed on a full-time
basis.
full-time Commissioner means a Commissioner appointed on a
full-time basis.
Natural Resource Management Ministerial Council
means:
(a) subject to paragraph (b), the Natural Resource Management Council
established by COAG in June 2001; or
(b) if another body is prescribed by the regulations for the purposes of
this definition—that other body.
NWC or National Water Commission means the
National Water Commission established by section 6.
NWI or National Water Initiative means the
Intergovernmental Agreement on a National Water Initiative between the
Commonwealth of Australia and the Governments of New South Wales, Victoria,
Queensland, South Australia, the Australian Capital Territory and the Northern
Territory, signed on 25 June 2004, and as amended from time to
time.
part-time CEO means a CEO appointed on a part-time
basis.
part-time Commissioner means a Commissioner appointed on a
part-time basis.
This Act binds the Crown in each of its capacities, but does not make the
Crown liable to be prosecuted for an offence.
The National Water Commission (NWC) is established by this
section.
General functions
(1) The NWC has the following general functions:
(a) to assist with the implementation of the NWI, and to undertake
activities that promote the objectives and outcomes of the NWI;
(b) if requested to do so by the Minister, to advise and make
recommendations to the Commonwealth or COAG, where relevant, on matters of
national significance relating to water (including the sustainable management of
water resources and access to, and use of, water);
(c) if requested to do so by the Minister, to advise and make
recommendations to the Minister on matters relating to water;
(d) if requested to do so by the Minister, to advise and make
recommendations to the Minister in relation to:
(i) the Australian Water Fund; or
(ii) any other Commonwealth program that relates to the management and
regulation of Australia’s water resources;
(e) to advise the Commonwealth or COAG, where relevant, on whether a State
or Territory is implementing its commitments under any agreement (other than the
NWI or the COAG Water Reform Framework) between the Commonwealth and the State
or Territory relating to the management and regulation of Australia’s
water resources, if the agreement provides for the NWC to have this
function;
(f) any other function prescribed by the regulations.
Specific functions relating to implementing the NWI
(2) The NWC has the following specific functions relating to implementing
the NWI:
(a) to undertake an initial assessment of:
(i) Australia’s water resources; and
(ii) the governance, management and regulation of those
resources;
having regard to work already carried out by parties to the NWI and, if
required, undertaking further work in order to make that assessment;
(b) to advise COAG of the NWC’s initial assessment under
paragraph (a);
(c) to determine whether the plans of the parties to the NWI for
implementing the NWI are consistent with the objectives, outcomes, actions and
timelines stated in the NWI, and to accredit those plans in accordance with the
NWI;
(d) to advise COAG of the NWC’s determination and any accreditations
under paragraph (c);
(e) to advise the Commonwealth or COAG, where relevant, on whether the
parties to the NWI are implementing their commitments under the NWI;
(f) to monitor the impact of interstate trade in water access entitlements
in the Southern Murray-Darling Basin, and to advise the relevant parties to the
NWI on that impact;
(g) every 2 years starting in 2006-07, to assess against national
benchmarks the performance of the water industry in managing and using
Australia’s water resources (for example, in water pricing, water
management costs and irrigation efficiency), and to advise COAG of those
assessments;
(h) for 2006-07 and 2008-09:
(i) to assess the progress of parties to the NWI towards achieving the
objectives and outcomes stated in, and within the timelines required by, the
NWI; and
(ii) to advise COAG of those assessments; and
(iii) to advise and make recommendations to COAG on actions that the
parties might take to better achieve those objectives and outcomes;
(i) in 2010-11, to review the NWI comprehensively, including
assessing:
(i) the NWI against performance indicators that are developed by the
Natural Resource Management Ministerial Council in consultation with the NWC;
and
(ii) the extent to which actions taken under the NWI have improved the
sustainable management of Australia’s water resources and have contributed
to the national interest; and
(iii) the impact of the implementation of the NWI on regional, rural and
urban communities;
and to advise COAG of the outcome of the review and the
assessment.
Specific functions relating to implementing the COAG Water Reform
Framework
(3) The NWC has the following specific functions relating to implementing
the COAG Water Reform Framework:
(a) for 2005, to assess whether the parties to the NWI have implemented
their commitments under the COAG Water Reform Framework, and to advise the
Commonwealth of that assessment;
(b) for 2005, if requested to do so by the Minister, to assess whether
States or Territories that are not a party to the NWI have implemented their
commitments under the COAG Water Reform Framework, and to advise the
Commonwealth of that assessment;
(c) for subsequent years, if requested to do so by the Minister, to advise
the Commonwealth on the progress of a State or Territory that has a commitment
still to be implemented under the COAG Water Reform Framework towards
implementing that commitment.
Giving advice and making recommendations
(4) The NWC is to give all advice and make all recommendations under this
section by giving the advice and making the recommendations to the
Minister.
Parties to the NWI include the Commonwealth
(5) To avoid doubt, a reference in this section (other than in
paragraph (2)(c)) to the parties to the NWI includes a reference to the
Commonwealth.
(1) The NWC consists of:
(a) the Chair; and
(b) at least 3, but no more than 6, Commissioners nominated in accordance
with subsection (2) or (3).
Note: The Chair is also a Commissioner: see the definition
of Commissioner in section 4.
(2) The Commonwealth must nominate a person to be appointed as the Chair
in consultation with the other parties to the NWI. The Commonwealth may nominate
no more than 3 other persons to be appointed as Commissioners.
(3) The parties to the NWI (other than the Commonwealth) may nominate no
more than 3 persons to be appointed as Commissioners.
The Chair must keep the Minister informed of the general operations of
the NWC in respect of the performance of the NWC’s functions.
Each Commissioner must act in the best interests of the NWC.
(1) A Commissioner is to be appointed by the Governor-General by written
instrument, on either a full-time or part-time basis.
Note: A Commissioner can be re-appointed under this section:
see subsection 33(4A) of the Acts Interpretation Act
1901.
(2) A Commissioner holds office for the period specified in the instrument
of appointment. The period must not exceed 3 years.
(3) A person is not eligible for appointment as a Commissioner unless the
person has a high level of expertise in an area relevant to the functions of the
NWC. Relevant areas include, but are not limited to, the following:
(a) water resource management;
(b) freshwater ecology or hydrology;
(c) resource economics;
(d) public sector governance;
(e) the audit, evaluation or implementation of programs relating to
natural resource management.
(1) The Minister may appoint a person to act as a Commissioner:
(a) during a vacancy in the office of the Commissioner, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the Commissioner is
absent from duty or from Australia, or is, for any reason, unable to perform the
duties of the office.
Note 1: The Chair is also a Commissioner: see the definition
of Commissioner in section 4.
Note 2: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) A Commissioner is to be paid remuneration that is determined by the
Remuneration Tribunal. If no determination of that remuneration by the Tribunal
is in operation, the Commissioner is to be paid the remuneration that is
prescribed by the regulations.
(2) A Commissioner is to be paid the allowances that are prescribed by the
regulations.
(3) Subsections (1) and (2) have effect subject to the
Remuneration Tribunal Act 1973.
(1) A full-time Commissioner has the recreation leave entitlements that
are determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time Commissioner leave of absence,
other than recreation leave, on the terms and conditions as to remuneration or
otherwise that the Minister determines.
(3) The Chair may grant leave of absence to any part-time Commissioner on
the terms and conditions that the Chair determines.
(4) If the Chair is a part-time Commissioner, the Minister may grant leave
of absence to the Chair on the terms and conditions that the Minister
determines.
(1) A full-time Commissioner must not engage in paid employment outside
the duties of the Commissioner’s office without the Minister’s
consent.
(2) A part-time Commissioner must not engage in paid employment that
conflicts or could conflict with the proper performance of the
Commissioner’s duties without the Minister’s consent.
A Commissioner holds office on the terms and conditions (if any) in
relation to matters not covered by this Act that are determined by the
Governor-General.
(1) A Commissioner may resign his or her appointment by giving the
Governor-General a written resignation.
(2) If the Chair resigns his or her appointment, then he or she must
resign as both the Chair and a Commissioner.
Note: This does not prevent a person who has been appointed
as both the Chair and a Commissioner from being re-appointed only as a
Commissioner.
All Commissioners
(1) The Governor-General may terminate the appointment of a
Commissioner:
(a) for misbehaviour or physical or mental incapacity; or
(b) if the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(c) if the Commissioner fails, without reasonable excuse, to comply with
section 22.
Additional grounds: full-time Commissioners
(2) The Governor-General may terminate the appointment of a full-time
Commissioner if:
(a) the Commissioner is absent, except on leave of absence, for 14
consecutive days or for 28 days in any 12 months; or
(b) the Commissioner engages, except with the Minister’s consent, in
paid employment outside the duties of his or her office.
Additional grounds: part-time Commissioners
(3) The Governor-General may terminate the appointment of a part-time
Commissioner if:
(a) the Commissioner is absent, except on leave of absence, from 3
consecutive meetings of the NWC; or
(b) the Commissioner engages, except with the Minister’s consent, in
paid employment that conflicts or could conflict with the proper performance of
the duties of his or her office.
(1) The Chair must convene at least 8 meetings of the NWC in each calendar
year.
(2) Meetings of the NWC must be held at such places as the Chair
determines.
Note: Section 33B of the Acts Interpretation Act
1901 provides for participation in meetings by telephone
etc.
(3) At a meeting of the NWC, 4 Commissioners constitute a
quorum.
(4) The Chair must preside at all meetings of the NWC at which he or she
is present.
(5) If the Chair is absent from all or part of a meeting of the NWC, a
Commissioner chosen by the other Commissioners present is to preside as
Chair.
Each Commissioner is entitled to receive reasonable notice of the
NWC’s meetings.
(1) Subject to this Part, the NWC must make rules of procedure, in
writing, for dealing with potential conflicts of interest. The NWC may make
other rules of procedure to be followed at meetings.
(2) The NWC may alter its rules of procedure from time to time.
(3) The NWC must make its rules of procedure, as altered from time to
time, available to the public.
(4) The NWC must ensure that minutes of its meetings are kept.
Disclosure by the Chair
(1) If the Chair has any direct or indirect pecuniary interest in a matter
being considered, or about to be considered, by the NWC, being an interest that
could conflict with the proper performance of the Chair’s functions in
relation to a matter arising at a meeting of the NWC, then the Chair must
disclose that interest to the other Commissioners as soon as
practicable.
(2) If the Chair has disclosed an interest, the Chair must not participate
in the NWC’s consideration of the matter unless the other Commissioners
agree.
Disclosure by a Commissioner other than the Chair
(3) If any other Commissioner has any direct or indirect pecuniary
interest in a matter being considered, or about to be considered, by the NWC,
being an interest that could conflict with the proper performance of the
Commissioner’s functions in relation to a matter arising at a meeting of
the NWC, then the Commissioner must disclose that interest to the Chair as soon
as practicable.
(4) If any other Commissioner has disclosed an interest, the Commissioner
must not participate in the NWC’s consideration of the matter unless the
Chair and the other Commissioners agree.
Disclosure to be recorded in the minutes of the meeting
(5) Any disclosure, and any decision made by the Commissioners in relation
to the disclosure, must be recorded in the minutes of the meeting.
There is to be a Chief Executive Officer (CEO) of the
NWC.
(1) The functions of the CEO are:
(a) to administer financial assistance, awarded by the Minister to
particular projects relating to Australia’s water resources,
from:
(i) the Australian Water Fund Account; or
(ii) any other Commonwealth program referred to in subparagraph
7(1)(d)(ii); and
(b) to manage the day-to-day administration of the NWC.
(2) All acts and things done in the name of, or on behalf of, the NWC by
the CEO are taken as having been done by the NWC.
(1) The CEO is to be appointed by the Minister by written instrument, on
either a full-time or part-time basis.
Note: The CEO can be re-appointed under this section: see
subsection 33(4A) of the Acts Interpretation Act 1901.
(2) The CEO holds office for the period specified in the instrument of
appointment. The period must not exceed 3 years.
(3) A person may be appointed as both the CEO and a Commissioner
(including the Chair). However, one of those appointments must be made on a
part-time basis.
(1) The Minister may appoint a person to act as the CEO:
(a) during a vacancy in the office of the CEO, whether or not an
appointment has previously been made to the office; or
(b) during any period, or during all periods, when the CEO is absent from
duty or from Australia, or is, for any reason, unable to perform the duties of
the office.
Note: See also section 33A of the Acts
Interpretation Act 1901, which contains extra rules about acting
appointments.
(2) Anything done by or in relation to a person purporting to act under an
appointment is not invalid merely because:
(a) the occasion for the appointment had not arisen; or
(b) there was a defect or irregularity in connection with the appointment;
or
(c) the appointment ceased to have effect; or
(d) the occasion to act had not arisen or had ceased.
(1) The CEO is to be paid remuneration that is determined by the
Remuneration Tribunal. If no determination of that remuneration by the Tribunal
is in operation, the CEO is to be paid the remuneration that is prescribed by
the regulations.
(2) The CEO is to be paid the allowances that are prescribed by the
regulations.
(3) Subsections (1) and (2) have effect subject to the
Remuneration Tribunal Act 1973.
(1) A full-time CEO has the recreation leave entitlements that are
determined by the Remuneration Tribunal.
(2) The Minister may grant a full-time CEO leave of absence, other than
recreation leave, on the terms and conditions as to remuneration or otherwise
that the Minister determines.
(3) The Chair may grant leave of absence to a part-time CEO on the terms
and conditions that the Chair determines.
(4) If the Chair is a part-time CEO, the Minister may grant leave of
absence to the part-time CEO on the terms and conditions that the Minister
determines.
(1) A full-time CEO must not engage in paid employment outside the duties
of the CEO’s office without the Minister’s consent.
(2) A part-time CEO must not engage in paid employment that conflicts or
could conflict with the proper performance of the CEO’s duties without the
Minister’s consent.
The CEO holds office on the terms and conditions (if any) in relation to
matters not covered by this Act that are determined by the Minister.
(1) The CEO may resign his or her appointment by giving the Minister a
written resignation.
(2) If the CEO is also a Commissioner, his or her resignation does not
affect his or her appointment as a Commissioner.
Full-time or part-time CEO
(1) The Minister may terminate the appointment of the CEO:
(a) for misbehaviour or physical or mental incapacity; or
(b) if the CEO:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or
insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his
or her creditors; or
(c) if the CEO is absent, except on leave of absence, for 14 consecutive
days or for 28 days in any 12 months; or
(d) if the CEO fails, without reasonable excuse, to comply with
section 33.
Additional ground: full-time CEO
(2) The Minister may terminate the appointment of a full-time CEO if the
CEO engages, except with the Minister’s consent, in paid employment
outside the duties of his or her office.
Additional ground: part-time CEO
(3) The Minister may terminate the appointment of a part-time CEO if the
CEO engages, except with the Minister’s consent, in paid employment that
conflicts or could conflict with the proper performance of the duties of his or
her office.
The CEO must give written notice to the Minister of any direct or
indirect pecuniary interest that the CEO has or acquires and that conflicts or
could conflict with the proper performance of the CEO’s
functions.
The CEO may, in writing, delegate any of his or her functions to an SES
employee or acting SES employee of the NWC staff.
Note 1: Section 17AA of the Acts Interpretation Act
1901 contains the definitions of SES employee and acting
SES employee.
Note 2: See also sections 34AA to 34A of the Acts
Interpretation Act 1901, which contain extra rules about
delegations.
(1) The staff necessary to assist the NWC are to be persons engaged under
the Public Service Act 1999.
(2) For the purposes of the Public Service Act 1999:
(a) the CEO and the APS employees assisting the NWC together constitute a
Statutory Agency; and
(b) the CEO is the Head of that Statutory Agency.
Secondment of Commonwealth officials
(1) The CEO, on behalf of the NWC, may arrange with:
(a) an Agency Head within the meaning of the Public Service Act
1999; or
(b) an authority of the Commonwealth;
for the services of officers or employees of the Agency or the authority to
be made available to assist the NWC in the performance of its
functions.
Secondment of State officials
(2) The CEO, on behalf of the NWC, may arrange with the appropriate
authority of a State or Territory for the services of officers or employees of
the Public Service of the State or Territory to be made available to assist the
NWC in the performance of its functions.
Reimbursement by the Commonwealth
(3) An arrangement under subsection (2) may provide for the
Commonwealth to reimburse a State with respect to the services of a person to
whom the arrangement relates.
(1) The CEO, on behalf of the NWC, may engage consultants and independent
contractors to give advice to, or perform services for, the NWC.
(2) A person may only be engaged under subsection (1) if the CEO
considers that the person has suitable qualifications and experience.
(3) The terms and conditions of engagement are as determined by the
CEO in writing.
(1) After the NWC has reviewed the NWI comprehensively and advised COAG of
the outcome of the review (as required by paragraph 7(2)(i)), a review must be
conducted of the NWC’s ongoing role and functions in relation to the
management and regulation of Australia’s water resources.
(2) The review must be conducted by the end of 2011 in accordance with the
processes provided for under the NWI or otherwise directed by COAG, and a
written report about the review must be made.
(3) The Minister must cause a copy of the report to be laid before each
House of Parliament within 15 sitting days after the Minister receives the
report.
This Act ceases to be in force on 30 June 2012.
(1) The Australian Water Fund Account is established by this
section.
Note: The Australian Water Fund Account represents only part
of the Australian Water Fund.
(2) The Account is a Special Account for the purposes of the Financial
Management and Accountability Act 1997.
There must be credited to the Account amounts equal to amounts that are
given or bequeathed for the purposes of the Account.
Note: An Appropriation Act provides for amounts to be
credited to a Special Account if any of the purposes of the Account is a purpose
that is covered by an item in the Appropriation Act.
The purposes of the Special Account, in relation to which amounts may be
debited from the Account, are:
(a) to provide financial assistance that is:
(i) awarded by the Minister to particular projects relating to
Australia’s water resources; and
(ii) determined by the Minister to be provided from the Account;
or
(b) to pay or discharge the costs, expenses or other obligations incurred
by the Commonwealth in the performance of the NWC’s functions under this
Act or the regulations; or
(c) to pay any remuneration or allowances payable to any person under this
Act.
A person commits an offence if:
(a) the person obtains information in, or in connection with, the
performance of the person’s function or duty for the purposes of this Act;
and
(b) the person makes a record of or discloses that information;
and
(c) either:
(i) the record or disclosure is not made in the course of performing that,
or any other, function or duty for the purposes of this Act; or
(ii) the record or disclosure is not required or permitted by
law.
Penalty: Imprisonment for 2 years.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(1) The NWC may make its assessments under paragraphs 7(2)(a), (g), (h)
and (i) and (3)(a) and (b) available to the public only with the agreement of
the Minister.
(2) The NWC must not make any other advice or recommendations available to
the public.
(1) The NWC must, within 60 days after the end of each year ending on
30 June, give the Minister a report on its operations during that year, for
presentation to the Parliament.
Note: See also section 34C of the Acts
Interpretation Act 1901, which contains extra rules about annual
reports.
(2) If financial assistance from the Australian Water Fund Account or
another Commonwealth program referred to in subparagraph 7(1)(d)(ii) was
administered during a year under this Act, then the report relating to that year
must set out:
(a) the name of the individual or body to whom financial assistance was
given; and
(b) the amount and purpose of the financial assistance.
(3) If a person was engaged under section 37 during a year, then the
report relating to that year must set out:
(a) the name of the individual or body who was engaged; and
(b) the manner in which the individual or body assisted in the performance
of the NWC’s functions.
(4) The Minister must give a copy of the report to the relevant Minister
for each of the parties to the NWI (other than the Commonwealth) at the same
time as the report is presented to the Parliament.
The Governor-General may make regulations prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving
effect to this Act.